Saturday, April 6, 2019

Rastan: Can the ICC function Without State Compliance?

Rod Rastan (International Criminal Court) has posted Can the ICC function Without State Compliance? (in The Elgar Companion to the International Criminal Court, Margaret M. deGuzman & Valerie Oosterveld eds., forthcoming). Here's the abstract:
What should the ICC do when it cannot rely on cooperation from the states that would ordinarily be best placed to assist it, such as the state(s) where the crimes occurred or whose nationals are the victims and/or perpetrators? Non-cooperation may arise from such state being unwilling to assist, for example because its agents are implicated in the crimes. Or the authorities may be unable to provide assistance due to insufficient control of territory, weak governance, or lack of means. In some areas, de facto cooperation and access to territory may be dependent on an opposing armed group, a separatist authority or a foreign occupying power – rendering the de jure authorities effectively ‘absent’. In other circumstances, the Court’s work may be interfered with by attempts to corruptly influence the judicial process. The ICC’s dilemma is made more complicated given its raison d'être to intervene where the national authorities have failed in their primary responsibility to investigate and prosecute. But how can it do this if any those same authorities cannot or will not assist it? Should the ICC decline to operate where it cannot rely on effective cooperation, but risk a persistence of impunity? Or should it endeavour even where cooperation prospects are not favourable, but risk institutional failure? In other words, can the ICC function without state compliance?